Reinaldo (Migration)

[2023] AATA 505

Reinaldo (Migration) [2023] AATA 505 (9 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hanjlian Reinaldo

REPRESENTATIVE:  Mr Glen Teow Hua Ong (MARN: 1385471)

CASE NUMBER:  2206488

HOME AFFAIRS REFERENCE(S):          BCC2020/1991712

MEMBER:Rachel Da Costa

DATE:9 February 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl 600.211 of Schedule 2 to the Regulations.

Statement made on 09 February 2023 at 1:21pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – genuine temporary entrant – substantial compliance with visa conditions – intention to comply with visa condition – all other relevant matters – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 600.211

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 April 2022 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant is a 26-year-old citizen of Indonesia. The visa applicant applied for the visa on 29 July 2020. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 600.211, which requires the visa applicant to satisfy the Minister that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 because the delegate was not satisfied that the applicant had a genuine intention to stay temporarily in Australia. On 3 May 2022, the visa applicant applied to the Tribunal for a review of that decision. The visa applicant provided a copy of the delegate’s decision to the Tribunal. The applicant was represented in relation to the review.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

6. The issue in this case is whether cl 600.211 is met, which requires the Tribunal to be satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

7. In the present case, the visa applicant seeks the visa for the purposes of travel in Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl 600.221 and cl 600.222.

8. The visa applicant’s representatives have provided written submissions to the Tribunal dated 3 May 2022 and 22 December 2022, as well as other documents in support of the applicant’s visa application. The Tribunal has considered these in making its decision.

9. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he or she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl 600.211(a)). Movement records of the Department of Home Affairs show that the visa applicant arrived in Australia on 20 August 2019 as the holder of a Subclass 462 Work and Holiday (Temporary) visa. After this visa ceased on 20 August 2020, he has been the holder of a Bridging A visa. Based on the evidence before it, the Tribunal finds that the applicant has complied substantially with the conditions of the visas granted to him.

10. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl 600.211(b)). The conditions to which a visa in the circumstances of this case would be subject are as follows (cl 600.611(3)):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months.

11. The visa applicant’s representative has provided written submissions dated 22 December 2022 in which he submits that at the time the applicant applied for the Visitor visa, the visa applicant wished to remain in Australia for a short period to travel around Australia and that he did not intend to work if he was granted the visa. It is submitted that there were other visa types the applicant would have been able to apply for had he wanted to work. Based on the evidence before it, the Tribunal is satisfied that the visa applicant understands the conditions attached to a Visitor visa and intends to comply with conditions 8101 and 8201 if the visa is granted.

12. The Tribunal has also considered all other relevant matters (cl 600.211(c)). As part of this consideration, the Tribunal notes that the visa applicant applied for the visa for a proposed period of three months up to 29 October 2020. In his written submissions dated 22 December 2022, the visa applicant’s representative submits that the visa applicant’s travel plans were disrupted by the Covid-19 pandemic and it would have been difficult for the visa applicant to commit to a flight during the pandemic when flights were very limited and expensive. The visa applicant’s representative also submitted that the visa applicant has valid intentions as a genuine temporary entrant to Australia. With these written submissions, the applicant’s representative attached an e-ticket booking which showed that the visa applicant had booked a flight to depart Australia on 21 January 2023 and fly to Jakarta, Indonesia.

13. Movement records of the Department of Home Affairs show that the visa applicant departed Australia for Indonesia as scheduled on 21 January 2023 and is currently offshore. His Bridging A visa ceased on this same date. The Tribunal considers the visa applicant’s departure from Australia and return to Indonesia is compelling evidence of his genuine intention to remain in Australia temporarily for the purpose for which the visa is granted.

14. Based on the evidence before it, the Tribunal is satisfied that the visa applicant will comply with the conditions of the visa and that the visa applicant understands the potential consequences for him if he does not comply with the conditions of his visa.

15. For the above reasons the Tribunal is satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and finds that the requirements of cl 600.211 are met.

    DECISION

16. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl 600.211 of Schedule 2 to the Regulations.

    Rachel Da Costa
    Member